Southernrae 2 Pty Ltd and Shire Of Murray - [2009] WASAT 60

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SOUTHERNRAE 2 PTY LTD and SHIRE OF MURRAY [2009] WASAT 60

MEMBER: MR D R PARRY (SENIOR MEMBER)
MS M CONNOR (MEMBER)

HEARD: 26, 27 AND 30 MARCH 2009

DELIVERED : 6 APRIL 2009

FILE NO/S: DR 419 of 2008

BETWEEN: SOUTHERNRAE 2 PTY LTD
Applicant
AND
SHIRE OF MURRAY
Respondent
WESTERN AUSTRALIAN PLANNING COMMISSION
Intervenor

Catchwords:

Town planning Development application Selfstorage facility Primary Regional Roads reservation Regional road no longer required Likely requirement for local arterial road in approximate location of Primary Regional Roads reservation Whether proposed development is acceptable having regard to Primary Regional Roads reservation Whether proposed development is consistent with orderly and proper planning Local planning Availability and ability to develop industrial land Appropriate interface with Special Rural land

Legislation:

Peel Region Scheme, cl 10(b), cl 34(h)
Planning and Development Act 2005 (WA), s 126(1)
Shire of Murray Town Planning Scheme No 4, cl 3.1.1, cl 6.13.1
State Administrative Tribunal Act 2004 (WA), s 37(3)

Result:

Development application refused

Category: B

Representation:

Counsel:

Applicant:     Mr G Castledine
Respondent:     Mr C Slarke
Intervenor:     Ms C Ide

Solicitors:

Applicant:     Castledine Legal and Mediation Services
Respondent:     McLeods
Intervenor:     State Solicitor's Office

Case(s) referred to in decision(s):

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned a development application for a self‑storage facility on land that, while reserved for Primary Regional Roads, was no longer required for regional roads purposes.
The Tribunal determined that the Primary Regional Roads reservation of the site did not warrant refusal of the proposed development, because the reservation of the site and of contiguous land for Primary Regional Roads was redundant.
However, the Tribunal also determined that the development application warranted refusal because it was inconsistent with orderly and proper planning at the local level. The evidence showed that a local arterial road will be required in the approximate location of the current Primary Regional Roads reservation. Because of the development, the local arterial road was likely to be located to the immediate east of the development. The development and the consequent location of the local arterial road were likely to have adverse local planning consequences on the availability and the ability to fully develop industrial land in the vicinity of the site and on achieving an appropriate interface between industrial and special rural land.
The development application was therefore refused.

Introduction

These proceedings involve the review of the deemed refusal of a development application under the Peel Region Scheme (PRS) and the Shire of Murray Town Planning Scheme No 4 (TPS 4) for a self‑storage facility comprising 136 self‑storage units, office and caretaker's dwelling. It is, however, a most unusual planning case in two respects.
First, the applicant, Southernrae 2 Pty Ltd (Southernrae), contended, correctly, that a Primary Regional Roads (PRR) reservation that applies to the development site is redundant, and yet it is only because of the existence and effect of the PRR reservation that the proposed development is capable of approval under TPS 4.
Second, Southernrae contended, also correctly, that the proposed development is, in itself, benign, and yet, for reasons discussed below, it has likely consequences for adjoining and adjacent land that makes it unacceptable in terms of orderly and proper planning at the local level.

Site and locality

The proposed development site has a width of approximately 50 metres, a length of approximately 180 metres and an area of approximately 0.9 hectare (site). The site is located in the north‑western part of Lot 602 Beacham Road, West Pinjarra (Lot 602).
Lot 602 has an area of approximately 28.5 hectares and currently contains a hayshed on pasture land, two high voltage towers within a Western Power easement and a drainage swale along the northern boundary parallel to Beacham Road. Lot 602 is located within the local government area of the Shire of Murray (Shire or Council), approximately 3 kilometres north‑west of the Pinjarra townsite and approximately 15 kilometres south‑east of the Mandurah city centre.
Lot 602 has a rural appearance. However, most of Lot 602 is zoned 'Industrial' under the PRS and 'Industrial Development' under TPS 4. Land to the east, between Lot 602 and Pinjarra Road, and to the south, also has this zoning. Part of the land to the south‑east of Lot 602 has been developed for industrial purposes and part of the land further to the south is currently being developed for these purposes.
The site is not zoned under either the PRS or TPS 4. Rather, the site is subject to a PRR reservation that runs for a width of generally 70 metres along the western boundary of Lot 602 from Beacham Road south for approximately two‑thirds of the length of Lot 602, and then curves gently to the east, so that it crosses the southern boundary of Lot 602 at its approximate midpoint, from where the PRR reservation continues in a south‑easterly direction. The PRR reservation widens to approximately 80 metres within Lot 602 at its frontage to Beacham Road.
Clause 10(b) of the PRS states that land is reserved under that instrument for:
Primary Regional Roads ‑ to provide a regional road network to accommodate current and future transport needs on roads declared under the Main Roads Act 1930;
In particular, the PRR reservation on Lot 602 and on contiguous land to its north and south was intended to accommodate the Western Pinjarra Bypass linking Pinjarra Road to the north to South Western Highway to the south.
Lot 602 also includes an area to the south‑west of the PRR reservation, where it curves to the east, which is zoned 'Rural' under both the PRS and TPS 4. The land to the south of Lot 602, and to the south‑west and west of the southern continuation of the PRR reservation, is also zoned 'Rural' under both of these instruments.
Land to the west of Lot 602 is zoned 'Rural' under the PRS and 'Special Rural' under TPS 4. This land comprises lots with areas of approximately 2 hectares to 3.6 hectares, generally containing single dwellings and associated outbuildings.
Section 126(1) of the Planning and Development Act 2005 (WA) (PD Act) states as follows:
If a region planning scheme delineates land comprised in a local planning scheme as a reserve for any public purpose, then the local planning scheme, insofar as it operates in relation to that land, is, by force of this section and without any further action under this Act, amended to such extent (if any) as is necessary to give effect to the reservation under the region planning scheme.
The Scheme Map for TPS 4 shows the part of Lot 602 to the west and south‑west of the part zoned 'Industrial Development' as 'Rural'. This encompasses the whole of the area subject to the PRR reservation, including the site.
However, it was common ground in the proceedings that the effect of s 126(1) of the PD Act is that TPS 4 has been amended so that the land subject to the PRR reservation is no longer zoned 'Rural', and is, in fact, unzoned under TPS 4.
Interestingly, had the zoning of the site remained 'Rural', development for the purposes of 'warehouse and storage' would have been prohibited under TPS 4. In contrast, while development for 'warehouse and storage' on unzoned land under TPS 4 requires development approval (cl 3.1.1), it is a use that is capable of approval on such land. It is, therefore, only because of the effect of the PRR reservation under the PRS that approval of the proposed development can be entertained under TPS 4.
The parties differed in relation to whether s 126(1) of the PD Act also has the effect that the land that is subject to the PRR reservation under the PRS is subject to a corresponding reservation under TPS 4. Southernrae and the Western Australian Planning Commission (Commission), which was granted leave to intervene in the proceedings pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA), contended that the land that is subject to the PRR reservation under the PRS is, by virtue of s 126(1) of the PD Act, also subject to a corresponding reservation under TPS 4. The Shire contended otherwise.
However, all parties agreed that it was unnecessary for the Tribunal to determine this dispute in order to arrive at the correct and preferable decision in relation to the review. The Tribunal concurs. We, therefore, leave aside this interesting and difficult question for another day.

Proposed development

As noted earlier, the proposed development involves the construction of 136 self‑storage units, office and caretaker's dwelling on the site.
Access to the site from Beacham Road is proposed via a trafficable culvert crossing over the swale adjacent to the northern boundary. The office and caretaker's dwelling would be located in the northern part of the site, together with an open hardstand area for car, boat, truck and caravan storage. The rest of the site would contain storage units 3.0 metres by 6.0 metres in area, with a wall height of 3.0 metres and an overall roof height of 4.049 metres. The closest storage units would be set back 6.0 metres from the common boundary with the Special Rural area to the west.
Mr Darren Levey, a traffic engineer called on behalf of Southernrae, gave evidence, which was not questioned, that the proposed development would generate approximately 50 vehicle trips per day.
Southernrae identified the proposed development as the first of four stages which would ultimately include 544 self‑storage units occupying over half the length of Lot 602 adjacent to its western boundary. Each of the four stages would be located wholly within the PRR reservation.

Issues for determination

The following two principal issues arise for determination in this review:
1)Whether the proposed development is acceptable having regard to the PRR reservation.
2)Whether the proposed development is consistent with orderly and proper planning.
The Tribunal will consider these issues in turn.

Is the proposed development acceptable having regard to the PRR reservation?

The Tribunal had the benefit of expert traffic evidence from Mr Levey and Mr Brett Belstead, a traffic engineer and Main Roads Western Australia's Regional Manager, South West Region, who was called by the Commission.
The traffic experts agreed that a regional bypass road is not required in the PRR reservation. In effect, in terms of the purpose of the PRR reservation under cl 10(b) of the PRS, namely, 'to provide a regional road network to accommodate current and future transport needs', the PRR reservation for the Western Pinjarra Bypass is now redundant.
Mr Dale Sanderson, a town planner employed by the Department for Planning and Infrastructure, who was called on behalf of the Commission, gave evidence that, until such time as the PRS is amended, the PRR reservation remains 'a valid part of the planned regional road network for the Peel region'. Mr Sanderson explained that the Commission is undertaking strategic planning for the regional road network. He said that the Commission currently has no proposal to amend the PRS to remove the Western Pinjarra Bypass.
However, having regard to the unanimous expert traffic evidence presented to the Tribunal, it is clear that the PRS will ultimately be amended to delete the PRR reservation.
Furthermore, while Mr Sanderson said that there is 'some chance' that there will be a requirement for an Other Regional Roads reservation under the PRS in the location of the current PRR reservation, that opinion cannot be accepted in light of the traffic experts' unanimous evidence. The traffic experts stated explicitly that a road is not required in the area of the site as a bypass for regional traffic.
Clause 34(h) of the PRS requires the Tribunal to have regard to 'the purpose for which the land is reserved' in considering whether to grant development approval for the proposed development under the PRS. While it is common ground that the proposed development is inconsistent with the construction of a road, the traffic evidence shows that the site is not required for the purpose for which the land is reserved under the PRS.
It follows that the PRR reservation under the PRS does not warrant refusal of the proposed development.

Is the proposed development consistent with orderly and proper planning?

The proposed development was correctly characterised by Mr Adam Brown, a town planner called on behalf of Southernrae, as 'a passive use [that] would make a sensible gradation between the existing Special Rural [area to the west] and future industrial uses [to the east] to minimise any potential conflict by way of nuisance issues such as dust, noise and vibration that can be associated with industrial areas'. Similarly, Mr Stephen Allerding, who is also a town planner called on behalf of Southernrae, referred to the proposed development as:
a relatively benign 'industrial' use that at most, results in minimal adverse noise impacts and provides an appropriate transition between 'conventional' industrial development to the east (involving the processing, making and use of materials with machinery and other potentially noisy activities) compared to this form of use which is relatively benign.
Mr Allerding also gave evidence that the proposed structures would not have an adverse impact on the adjoining Special Rural area in terms of height, bulk and scale.
In addition, Southernrae called evidence from Dr James Davies, an hydrologist, who said that the proposed development would operate satisfactorily in relation to drainage issues.
The Tribunal accepts the evidence referred to in the preceding three paragraphs. In most planning review applications, acceptance of such evidence would warrant approval of the proposed development. However, this is a most unusual planning case. In the circumstances of this case, the likely consequences of the proposed development for adjoining and adjacent land are such that, despite its benign and appropriately transitional character, the proposed development is unacceptable in terms of orderly and proper planning at the local level.
While the traffic experts agreed that a regional bypass road is no longer required in the current PRR reservation, they also agreed that a north-south road link will be required in the approximate location of the PRR reservation, between Pinjarra Road to the north and Greenlands Road to the south. Mr Belstead explained that the required north‑south road will need to be an efficient and attractive local arterial route so as to encourage local and district traffic off the regional road network. To achieve this objective, the road must have a dual carriageway in both directions. The traffic engineers agreed that, assuming drainage, services, noise attenuation and landscaping can be appropriately designed on an area‑wide basis, rather than having to be located within the road reserve, the required road reserve width would probably be 25 metres to 30 metres, or 35 metres to 40 metres to accommodate truck turning movements.
The approval and carrying out of the proposed development would make it likely that the local arterial road would be located to its immediate east, because that would avoid the need to demolish the development. There is adequate area within Lot 602 to the east of the site to accommodate a 40 metre wide road reserve.
However, the approval and carrying out of the proposed development, and the consequent location of the local arterial road to its east, would have adverse local planning consequences to the north and south of the site.
The town planning witnesses called by Southernrae and by the Shire agreed ‑ and the Tribunal finds ‑ that, as the PRR reservation is now redundant, the site and the rest of the PRR reservation to its north and south is likely to be rezoned 'Industry' under the PRS and 'Industrial Development' under TPS 4. This means that the practical consequence of the approval and carrying out of the proposed development, and the resulting likely location of the local arterial road to its east, would be the creation of a 50 metre wide industrial area to the south of the site, wedged between the local arterial road to the east and the Special Rural area to the west.
Clause 3.2.1 of the Commission's Policy DC 4.1 ‑ Industrial Subdivision (DC 4.1) states as follows:
It is important that the design of an industrial area ensures compatibility with adjacent commercial and/or residential areas. This may be achieved in the following ways:
a)An arterial street or freeway may be used as a buffer area. Here both industrial and residential lots may face internal roads with appropriate landscaping and screening along the arterial road frontages.
b)Alternatively, compatibility may be achieved by sensitive landscaping, berming, and other site planning techniques.
Similarly, cl 6.13.1 of TPS 4 states that:
Planning for an industrial estate should take account of the need to derive maximum amenity or benefit for adjacent property owners as well as for prospective resident industries.
Mr Rodney Peake, a town planner and the Shire's Director, Planning and Development Services, gave evidence that it is inappropriate to locate industrial uses directly abutting a Special Rural area. Having regard to cl 3.2.1 of DC 4.1 and cl 6.13.1 of TPS 4, the Tribunal concurs. While Southernrae has foreshadowed further self‑storage stages to the south, it cannot be assumed that self‑storage development will ultimately take place or that it will remain indefinitely as a buffer between Special Rural and industrial land uses. It is therefore likely that the area to the south of the site will be available for industrial development.
Furthermore, as Mr Sanderson observed, 'a long, narrow lot limits your planning options of what you can put on there'. Consistently with DC 4.1, if an industrial area is not separated from a residential area or, in this case, a Special Rural area, by an arterial road, then there needs to be sufficient depth to the industrial land to achieve compatibility by sensitive landscaping, berming and other site planning techniques. A site depth of 50 metres is likely to be inadequate to accommodate industrial development on the land to the south of the site while still achieving compatibility with the Special Rural area to the west by these means.
As Mr Peake pointed out, this problem would be exacerbated by the need to provide road access to the land to the south of the site. While, if this land were developed for self‑storage purposes, access could be from Beacham Street through the site the subject of these proceedings, other development would require access from the local arterial road discussed by the traffic experts. As multiple access points would be inconsistent with the intent of providing an efficient and attractive arterial route to encourage local and district traffic off the regional road network, it is likely that industrial development would require an access road to the arterial road, leaving even less developable depth for industrial development. This is contrary to the intent of the Industrial Development zone referred to in cl 6.13.1 of TPS 4 to 'take account of the need to derive maximum amenity and benefit … for the resident industries'.
Finally, the effect of the approval and carrying out of the proposed development, and the consequent likely location of the local arterial road to its immediate east, would be to restrict the size of existing and likely future industrial land to the north of the site across Beacham Road. The prolongation of a 40 metre wide road reserve to the east of the site northwards to Pinjarra Road is likely to reduce the area of land zoned Industrial Development between Beacham Road and Pinjarra Road. Furthermore, as Mr Craig Slarke, counsel for the Shire, submitted, if the local arterial road were located in the western part of the current PRR reservation, rather than to the east of the site, it is likely that the area available for industrial development between Beacham Road and Pinjarra Road would increase by a width of 30 metres to 40 metres, because that would be the width of the area between the local arterial road and the land currently zoned 'Industrial Development'. While, as Mr Allerding observed, depending on its alignment, the local arterial road may enable part of the eastern area of the current PRR reservation in the vicinity of Pinjarra Road to be rezoned for industrial purposes, the net practical result of the approval and carrying out of the proposed development is that the local arterial road will result in a reduction in the area of industrial land that would otherwise be available in the locality. This would be contrary to orderly and proper planning at the local level.

Mr Graham Castledine, counsel for Southernrae, submitted that the local arterial road referred to by the traffic experts is an irrelevant consideration, unless it constitutes a seriously-entertained planning proposal. Mr Castledine referred to the decision of the Tribunal in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls) in support of this submission.
However, Nicholls and the other decisions concerning the Coty principle (Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117) referred to in Nicholls are distinguishable from the present case. The Coty principle applies 'when a draft planning instrument or policy or a draft amendment to a planning instrument or policy is raised for consideration in relation to a subdivision or development application' (Nicholls at [45]; see generally Nicholls at [40] ‑ [45]). This is not such a case.
The significance of the local arterial road in the vicinity of the site is not as a draft planning proposal relevant to whether to approve the proposed development application, but rather, as a requirement for local traffic infrastructure. Even if the local arterial road is not a seriously‑entertained planning proposal, it is, on the evidence, likely to be required and, if the proposed development is approved and carried out, likely to be located to the immediate east of the site. The local arterial road is therefore relevant.
It follows that the proposed development is not consistent with orderly and proper planning at the local planning level. The Tribunal considers that the development application warrants refusal for this reason.

Conclusion

The Tribunal has determined that the PRR reservation of the site does not warrant refusal of the proposed development, because the reservation of the site and of contiguous land for Primary Regional Roads is now redundant. Furthermore, the evidence clearly shows that the site and contiguous land will not be required for any regional road. While the Commission does not presently propose to remove the PRR reservation, this will ultimately occur as a matter of orderly and proper planning.
However, the Tribunal has also determined that the proposed development is not consistent with orderly and proper planning at the local planning level, because of its likely consequences for the availability and the ability to fully develop industrial land in the vicinity of the site and for achieving an appropriate interface between industrial and Special Rural land. The development application therefore warrants refusal.
This latter determination highlights the planning sense in the Shire's position articulated by Mr Slarke in his concluding address that there should be proper strategic planning for Lot 602, including the area that is currently unzoned at the interface with the Special Rural land to the west. As Mr Slarke submitted, it would be preferable to strategically plan development of Lot 602, rather than to proceed by way of ad hoc planning through development application assessment.
Mr Slarke suggested that strategic planning for Lot 602 could take place through a local planning policy under TPS 4. The local planning policy could also constitute an outline development plan in relation to the part of Lot 602 that is zoned Industrial Development under TPS 4. It would seem sensible, therefore, for the strategic planning document to be prepared by the landowner of Lot 602 in consultation with the Shire.
Having regard to the Tribunal's findings that the PRR reservation is now redundant and that the area currently subject to the PRR reservation is likely to be zoned for industrial purposes, it would seem that local strategic planning of Lot 602 does not need to await formal deletion of the PRR reservation under the PRS.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The deemed refusal of a self-storage facility at Lot 602 Beacham Road, West Pinjarra under the Peel Region Scheme and the Shire of Murray Town Planning Scheme No 4 is set aside and a decision is substituted that development approval is refused under each planning scheme.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER